Friday, June 4, 2010

Domestic partners of federal employees are now eligible for long term care insurance. The Obama administration determined that it could make this change, without going to Congress, as part of the review of federal employee benefits the President announced last June. The program will be limited, however, to same-sex partners. The final regulations state that "opposite-sex domestic partners were not included because they may obtain eligibility to apply for Federal long term care insurance through marriage, an option not currently available to same-sex domestic partners."

My reasoning is simple. Two people who intertwine their lives with a level of economic interdependence should have the option to provide for each other's economic well-being, and that includes access to health care. (Yes, of course, everyone should have health care regardless of employment or relationship status...maybe someday). The federal regulations require that the domestic partners live together and intend to do so indefinitely, and that they "share responsibility for a significant measure of each other's financial obligations." Those are reasonable requirements, but they are equally reasonable for different-sex partners. For that matter, those two criteria should be enough for coverage for any two people, including those not in a sexually-based relationship.

Unfortunately, the emphasis on marriage for same-sex couples has obscured the ability to think about why federal employee benefits extend to anyone other than the employee. Instead, the focus of the current reform is essentially compensating for the inability of same-sex partners to marry. I lament this as a missed opportunity to think more expansively about the families and relationships that enrich all of our lives.

Sometimes, legislatures do go beyond the include-them-solely-because-they-can't-marry rationale. In Rhode Island, for example, both same- and different-sex domestic partners are authorized to make funeral and burial decisions. The law was vetoed by Rhode Island's governor last year, but overriden by the legislature in January. Oddly, however, a domestic partner must show economic interdependence -- measured by very specific criteria -- to qualify, but that factor that has nothing to do with whom the deceased would want to make a burial decision; it does make sense for health insurance coverage, because that is an economic matter, but burial decisions are about doing what the deceased would want, and that has nothing to do with intertwining finances. (In fact, my partner of more than 20 years and I would not qualify as domestic partners in Rhode Island if we did not already have wills naming each other as beneficiaries).

I do like one thing about the new federal regulations on partner long-term care insurance coverage. They require only a statement attesting to meeting the criteria, not submission of other proof. In response to some comments by those seeking more documentation, the final regulations explain that "we do not require documentation such as bank statements or other proof of financial support for spousal coverage." That part is a good model for the future.

But the limitation to same-sex couples is the wrong approach, as it makes marriage matter too much and fails many who deserve coverage. What next? After DOMA is repealed will same-sex couples have to get married for coverage?

2 comments:

Of course AtMP completely agrees with you, Nancy. When I see the "gay" headlines about news like this, I always hope I'm seeing sloppy reporting that fails to recognize the inclusion of different-sex couples, rather than narrow-minded policy-making.

Today I'm hoping it's just sloppy reporting on the IRS decision to tax CA domestic partners the same as married couples. Do you know whether it covers all domestic partners (including different-sex couples over age 62)? http://online.wsj.com/article/SB10001424052748704080104575286931017169308.html

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.